Should your grieving mum see your digital secrets?

A US state has passed a law that will give the family of a deceased person
access to their Twitter, Facebook and email accounts as well as the contents
of their computer and smartphone, in the same way as if they were physical
assets like a house or cash

The law seems to be at odds with the terms and conditions of some online services like Facebook

A US state has passed a law that will give the family of a deceased person access to their Twitter, Facebook and email accounts just as if they were physical assets.

Delaware’s “Fiduciary Access to Digital Assets and Digital Accounts Act” grants heirs and the executor of the will the same powers over digital accounts or devices as over physical assets like a house or cash.

The law grants access to email and social network accounts, but also online banking, shopping, web hosting and domain name management accounts.

It also extends to any "digital device”, which includes desktops, laptops, tablets, peripherals, servers, mobile telephones and "any similar storage device which currently exists or may exist as technology develops".

Unlike provisions made deliberately in a will to give access to digital accounts, where the person can plan what is and what is not included, the new law will open up all private information to the next of kin. Potentially revealing things which the deceased would not have wanted to disclose.

The legislation comes from the Uniform Law Commission, which campaigns for common laws across US states, so could eventually spread to larger and more populous areas of the country. The law, HouseBill 345, was signed last week by Governor Jack Markell.

But the law seems to be at odds with the terms and conditions of some online services. Facebook, for example, forbids its users from sharing their password or transferring the account to another person without written permission from the company.

Google, Facebook and Twitter did not respond to queries about whether they would be complying with requests made under the newly-passed law.

There are also suggestions that people could arrange for their will to be managed under Delaware law in order to take advantage of the new legislation.

“But if a person dies and his will is governed by Delaware law, the representative of that person’s estate would have access to the decedent’s Twitter account under HB 345. So the main question in determining whether HB 345 applies is not where the company having the digital account (i.e. Twitter) is incorporated or even where the person holding the digital account resides.”

Under UK law there is no automatic provision for a person’s passwords and accounts to be passed on to heirs. But it is possible to leave access to digital assets by including passwords in wills.